Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and
Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant challenges his first-degree burglary conviction, arguing that
evidence seized from his car was improperly admitted and that his right to a
fair trial was violated when the prosecutor stated in his opening statement
that Smallwood had admitted his guilt in an attempt to craft a plea agreement.
Appellant also challenges his 240-month sentence, arguing that a Maryland
offense was inaccurately calculated as a dangerous offense, and that the
sentence overstates his criminality. Because we find that the prosecutor's
comments constitute prosecutorial misconduct and therefore denied appellant his
right to a fair trial, we reverse appellant's conviction.

FACTS

On the morning of October 31, 1996, appellant Curtis Marcell
Smallwood was arrested for burglary. Later that day, investigator Mark
Robideau questioned Smallwood about the offense; twice Smallwood offered to
plead guilty. At trial, the prosecutor referred in his opening remarks to
Smallwood's offer to plead guilty. The jury convicted Smallwood of
first-degree burglary, and he was sentenced to 240 months. This appeal
follows.

D E C I S I O N

Smallwood argues that the prosecutor's statement in his
opening argument that Smallwood had offered to plead guilty denied Smallwood
his right to a fair trial. This statement relates to the fact that Smallwood
had twice asked, during his October 31st statement, that the tape recorder be
turned off, and while it was off, offered to plead guilty in exchange for a
sentence according to the guidelines.

The prosecutor told the jury in his opening statement,

You're also going to hear from Investigator Robideau the defendant at one point
in time even admitted that he wanted to plead guilty to this particular offense
and receive an appropriate sentence.

Smallwood's attorney made no objection, although, after a recess, she asked the
court that no reference of Smallwood's offer to plead guilty be admitted.

The prosecutor's statement was prosecutorial misconduct. A prosecutor "must
avoid inflaming the jury's passions and prejudices against the defendant,"
particularly where credibility is the central issue. State v.
Porter, 526 N.W.2d 359, 363 (Minn. 1995). Moreover, the prosecutor's
statement was a direct violation of Minn. R. Evid. 410, which states:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or
of an offer to plead guilty or nolo contendere to the crime charged or any
other crime or of statements made in connection with any of the foregoing pleas
or offers, is not admissible in any civil, criminal, or administrative action,
case, or proceeding whether offered for or against the person who made the plea
or offer.

Because we find that the prosecutor's comment denied Smallwood his right to a
fair trial, we need not address the other issues presented on appeal.